Arizona's Anti-Gay Bill Hurt the Religious

Social and religious conservatives should have been the first to oppose the Arizona Legislature's effort to allow businesses to discriminate against same-sex couples on religious grounds.

Partisans of the religious right apparently don't feel this way, but here's why they should: Pushing "conscience exemptions" beyond reasonable limits threatens a long-standing American habit of having government go out of its way to accommodate the commitments of religious people.

Conscience should not be used as a battering ram to undermine any adjustment in the law that some group doesn't like. Using conscience exemptions to facilitate backdoor resistance to social change takes something precious and turns it into a cheap political tactic.

Those who cherish religious faith ought to be heartsick that it is so often invoked not to advance compassion and understanding but rather to justify discrimination and even bigotry. This is doing serious harm to our religious traditions, particularly among the young.

The millennials are more detached from organized religion than any earlier cohort of young Americans since polling began: Roughly one-third reject formal religious affiliation. Many scholars -- notably Robert Putnam and David Campbell, whose American Grace is the definitive book on the United States' religious landscape -- attribute this to the hyper-politicization of faith on the right.

To young adults, Campbell and Putnam wrote in a 2012 article in Foreign Affairs, "'religion' means 'Republican,' 'intolerant,' and 'homophobic.' Since those traits do not represent their views, they do not see themselves -- or wish to be seen by their peers -- as religious."

Congratulations to the Arizona Legislature for doing such an excellent job at de-evangelization.

But the promiscuous resort to conscience exemptions is a more immediate danger to religious groups. Religious accommodations in our laws reflect our devotion to liberty and pluralism. They involve an ongoing effort to balance robust protections for faith groups on the one hand with the need for laws of general application on the other. Destroying the equilibrium would undercut the search for accommodation.

For both pragmatic and principled reasons, supporters of marriage equality have already gone out of their way to respect the objections of many faiths to blessing homosexual unions.

In November 2012, Maryland's voters approved gay marriage by a majority of 52 percent to 48 percent. Key to this victory (and to victories elsewhere) was the willingness of marriage equality's supporters to acknowledge the freedom of religious institutions to run their own affairs.

The wording of Question 6, as it was known, thus included strong language noting that the law "protects clergy from having to perform any particular marriage ceremony in violation of their religious beliefs; affirms that each religious faith has exclusive control over its own theological doctrine regarding who may marry within that faith; and provides that religious organizations and certain related entities are not required to provide goods, services, or benefits to an individual related to the celebration or promotion of marriage in violation of their religious beliefs."

Short of defeating the referendum, what more could religious opponents of gay marriage ask for? It turns out: quite a lot. The sponsors of the Arizona legislation thought, for example, that religious florists, caterers and photographers should not have to work weddings they don't believe should be taking place.

Most Americans disagree with this. They make a sensible distinction between guarding the rights of religious groups and allowing wholesale discrimination against gays and lesbians in commerce.

A poll in July by Third Way, a policy organization reflecting the thinking of moderate Democrats, and the Human Rights Campaign, a leading gay rights group, found that while 61 percent of voters said that a clergy member or church should be able to refuse to perform a gay marriage ceremony, only 35 percent said a restaurateur should be able to refuse to cater a gay couple's wedding; 56 percent said he shouldn't.

A similar majority (59 percent) rejected the idea that a florist should be able to refuse to sell flowers for a gay couple's wedding, while 54 percent rejected a comparable right for photographers.

The public sees the difference between a church and a marketplace. Shouldn't this be good news for religious people?

Religious liberty is rooted in law but also in civility and in a constant effort to take account of the concerns of groups with profoundly different convictions. Intuitively, the American majority -- including large numbers of conservatives, Republicans and religious people -- knows that Arizona's bill upset this delicate balance.

Would Mr. Dionne have Christians participate in activities that are immoral because "most Americans disagree with this" form of conscious objection? Because "most Americans" may come to think that religious liberty merely pertains to the freedom to walk into your spiritual building of choice on Sunday - I guess that means that Christians should stop fighting social injustice the rest of the week outside its doors. Freedom of religion is more than freedom of worship. I will retain my God given obligation NOT to participate in activities which violate conscience, irrespective of the consequences - especially when those acts have been clearly stated to be immoral by long standing moral teaching of the Catholic Church.

It is a sad day when those whose privllege it is to write for a supposedly "Catholic" journal of thought would join the side of the persecutors. It is one thing for Jesus (and his followers) to hang out, and claim solidarity with tax collectors and prostitutes. It's another to wring shekels from Jewish hands, or to help "pimp" for the prostitute. It's one thing to reject a bad Bill put up by obtuse politicians. It's another to give aid and comfort to those who ultimately, don't have the Church's best interests in mind, and who will not stop until they have destroyed it.

Perry, the so-called anti-gay law would not have affected only gays; it could have been used to justify discrimination against anyone, even you. Under this law you could be taken to a hospital in critical condition, only to have a doctor refuse to treat you because his/her "sincerely held religious belief" is that the Catholic Church is the Whore of Babylon and Catholics don't deserve to live.

The arguments in support of this bill were the exact same justifications for denying civil rights to minorities in the Jim Crow era. They were wrong then and they're wrong now.

Where is your faith in the resilience of the Catholic Church? Since Jesus himself said the gates of hell will not prevail against it, I rather doubt it can be brought down by a cake.

Angela's example is a bit extreme. But she makes the point that it is a trivialization of the concept of religious liberty to use it to justify descrimination in the public marketplace based on class

Has anyone ever read of a Catholic florist refusing to provide flowers to a Catholic marrying a Protestant in a Protestant church? Or to a Southern Baptist refusing to cater a Catholic or Jewish wedding? How would Catholics and Jews react to the latter situation? Proposed laws such as this are simply an attempt to create a loophole to allow Jim Crow laws under cover of religious liberty. One can easily imagine how the sacred concept of religious liberty could be stripped of all true meaning, were laws like this to come into being. -- Larry Weisenthal/Huntington Beach CA

The author does not explain just EXACTLY why it is that a branch of government -- any government -- can force an individual photographer to take a picture that he/she simply does not want to take. We live (or did live) in a free country. We supposedly have a right to privacy in the USA; the government that needs to stay out of our bedrooms also needs to stay out of our photography studios, and bakeries, and clothing stores. AND CHURCHES. The above article is nonsense. The issue is nonsense. The Arizona statute did no more than restate the federal DOMA act, signed into law by.....Bill Clinton. And BTW the stylist that typically does Gov. Susana Martinez's hair just announced that he would no longer do so because of her opposition to gay marriage. Might he be in danger of losing his license? Should he be penalized, Mr Dionne? If so why? If not, why not? ....Awaiting your response...

All human rights legislation contains exemptions for religious belief and practice, but requires that what would otherwise be considered illegal discriminatory practices be justified by explicit elements (texts, usually) in the religion, and also that such practices be limited to religious institutions (usually including schools) operating in their sacramental functions. The Arizona bill, and the almost identical bills introduced in a number of other state legislatures, would have eliminated these restrictions. Instead, any person could discriminate in employment (hiring, firing, conditions of employment), housing (accepting tenants or evicting them) and business services on grounds that the person simply stated were beliefs that he "firmly held", whatever they were. Also, the ability to discriminate was extended to businesses, so that there could be religious gas stations, drug stores, and whatever you wanted. (Keep in mind that most healthcare facilities in the United States, such as physicians' clinics and hospitals are private enterprises, or are run by, or on behalf of, religous organizations). Arizona does not have legislation that prohibits dicrimination on the basis of sexual orienation, but three of its municipalities do, and, in any case the proposed statute would have overridden all that existed. Human rights legislation is founded on he principle that citizens can go about their lives being treated on their individual merits as customers, emloyees, and tenants, and not on the basis of a category that they belong to. Employers, landlords, and businesses, if they advertise to the general public, must behave accordingly. This is intended to foster a more civil society, and less damage done to indviduals who are, or are perceived as being, members of unpopular minorities. These are evidently not considerations taken favourably by the proponents of these statutes.

Before this law was passed last month, it was not illegal for businesses in Arizona to discriminate against gays. The legislation was a gratuitous, in-your-face act of hostility --"We have a right to discriminate against all those immoral homosexuals if we want to." People across the nation were offended, and the governor and Arizona business leaders knew there would be negative economic consequences. So Jan Brewer vetoed the bill.

The really interesting question here is: Why are religious conservatives so hostile? Can't you foresee that this kind of action will backfire on you? Is that what you desire, so you can pity yourselves as persecuted victims? Is this what your supposedly beloved Jesus would have wanted?

The tension between the claims of civil authority and those of individual conscience (commonly but not necessarily guided by religious belief) is inevitable. Any permanent, definitive resolution would entail either tyranny (even the tyranny of a majority) or anarchy. General rules meant to fit all situations are, I believe, doomed to failure. The best we can do is try to muddle through each new kind of situation as best we can, whether it be that of parents opposed to blood transfusions or even antibiotics on religious grounds or that of selective pacifists, opposed to specific wars on the basis of just-war criteria.

In the present instance the specter of Jim Crow redivivus should not be hastily dismissed. At the same time, we should avoid the error of Mark Twain's cat: once burned, it never again sat on either a hot or a cold (or lukewarm) stove.

Jim Crow laws permitted denial of service for morally indefensible reasons, but that was not what made the laws so offensive to the most rudimentary sense of justice. Because they applied to private enterprises offering basic public accommodations, often the only ones practically available in a given area, they legalized denial of the most basic services to a whole class of citizens. It's not only that all citizens, including those denied service, were providing the public infrastructure those businesses took for granted. The Jim Crow laws not only permitted but required businesses to discriminate against the "colored" (to use a term incorporated into the name of the NAACP and even then less offensive than others).

The rush to legalize discrimination under cover of religious liberty, in Arizona and elsewhere, doubtless owes a lot to cynical political opportunism and is already proving to be based on a fatal miscalculation. But the reaction against this ill-conceived move is a bit simplistic. The analogy with Jim Crow, in particular, is very questionable. It's worth remembering that the legislative flail was largely in response to a New Mexico case, Willock v Elane Photography, in which a mom-and-pop photography business refused to provide photography for a wedding between two women. The photographers were sued, and finding was for the plaintiff. Those unfamiliar with the case may find some of the details of interest.

All consciences apparently have the right to believe what they want locked away in the closet. Some consciences sometimes might have a right to speak about what they believe (provided it does not involve using any funds in public fora to disseminate that speech, like advertising or helping a candidate who supports your view). Even a more select few might sometimes be allowed to break a law when their consciences are especially sensitive (i.e., liked by columnist Dionne and/or Commonweal), e.g., burning draft cards.

But NO conscience should ever robustly have the right to say--when it comes to acting--NON POSSUMUS, especially if we can't do what is SOOOO politically correct (and might even get you a White House mention or Justice Department invitation)

The need for a "conscience exemption" for Arizona businesses has a basis in fact. In December of 2005, the Diocese of Phoenix barred a Catholic Mass from being celebrated at a privately-owned Phoenix area events center because the same center had been rented for a Planned Parenthood event a few weeks earlier. The vicar general of the Diocese seemed to suggest in the press that the Diocese's sanction against the events center could have been more serious but "[the owners] might not be aware of what Planned Parenthood does".

Upon further review: My compliments to Mr. Dionne for setting up the framework for such a useful discussion. The different perspectives, analyses, and conclusions within the Comments on this article are worthwhile and thought-provoking, And this aside from one's own personal position(s) on the subject.

The issue is at once critical, complex, and in many ways subtle. (subtle: hard to arrive at precise answers because the questions themselves cannot be made precise.)

And remeber that the Church opposes Gay Marriage but at the same time forbids unjust discrimination against the Gay community or any member thereof: "....MUST be accepted with respect, compassion, and sensitivity..." (My emphasis)

The issue is more complex than Dionne explains. Of course, Christians should be understanding of serving all of God's people, and in the context of serving them in most ways, Christians should love the sinner hate the sin. But photographing a wedding crosses a line. Additionnally why would a gay couple even consider having a photographer who did not beleive in Gay Marriage - except of course to create a lawsuit.

We must also ask ourselves the question in reverse and be sure we would respond the same way. What if a gay restaurant owner was asked to serve an Anti-Gay catering event. What if a Black hotel owner was asked to host a meeting of the Aryan Nation or the KKK? What if a fervent anti-gun photographer was hired to photograph the NRA National Meeting? All of the above must NEVER refuse service too. Can Mr. Dione live with that?

“Religion” can muck up people’s thinking between public and private. If, as a business, you are set up, establishing a judicial person or partnership or sole proprietorship, and rely on the secular state’s power, such as the enforcing of contracts, financial agreements, collection of debts, police power, etc. there should be very little question as to where your private views stop and compliance with law begins. If one is to use the law to buttress one’s ability to do business, one cannot pick and choose which laws to obey or disregard.

Nice try. Except that rights are by definition "inalienable." One does not, and can not give up God-given rights by engaging in business, or commerce, or working in the public marketplace, or by doing anything else. Rights exist above and beyond, and independent of government legislation. And we as Catholics know that the First Amendment goes far above and beyond the notion "freedom of worship" that is often slipped in as a would-be synonym for "Freedom of Religion."

Note as well that "involuntary servitude" was abolished well before the same happened to Jim Crow laws. If a photographer (or baker, or seamstress, or clergyman) chooses not to participate in a same-sex wedding, how is it that a government employee -- a nameless, faceless, meaningless bureaucrat -- can compel an individual to do so?

Everything you say was said in the Jim Crow South when business owners claimed it was their right to refuse service to certain customers. Those "nameless, faceless, meaningless bureaucrats" in the Congress and the Supreme Court reminded them that they had no right to refuse service to an entire class of people based on nothing more than physical characteristics. It isn't necessary for our Constitution to have a face in order for it to be the law of the land. And speaking of: if you provide goods or a service and receive remuneration, it's not involuntary servitude.

Quite apart from the civil rights aspect, discrimination makes bad business sense. Suppose I have a gay son and a straight daughter, and the son, with the full support of our entire family, wants to marry his gay partner. If a florist refuses to provide the flowers, he won't lose out on merely this particular job: the rest of the family will find other florists when THEY want flowers.

Had Gov. Brewer signed the Arizona "religious freedom" bill, I expected we would have seen businesses rushing to put "We do not discriminate" signs in their storefronts. Those that insisted on their "right" to discriminate would have been so conspicuous by the absence of signs in their windows that for economic reasons if nothing else, they would have capitulated and put up signs of their own.

Mr. Ray has repeatedly asked about Governor Martinez's hairdresser. There had been no response up to the time I began writing this comment. And the suit against Elane Photography in New Mexico has received little attention, with comments at best tangential. That was a case in which the customer denied service successfully sued the service provider for discrimination. Mr. Ray's question is whether the hairdresser should be sued too.

The responses that would be of most obvious interest would be from those who approved of Willock's suit against Elane Photography but also applaud Antonio Darden (dba Antonio's Hair Studio) for striking Governor Martinez from his customer list. I conjecture that they would see the two cases as sufficiently different to justify siding with the plaintiff in one and with the (hypothetical) defendant in the other. It would be interesting to see the distinction explained. (A key feature could be to point out that it was not the governor's faith that was at issue, just a policy position she saw as following from the tenets of that faith --a seductive but dangerous argument.)

For my part I'll risk suspicion of harboring an Emersonian hobgoblin and state that I would have sided with the photographers and would side with the hairdresser. In neither case did denial of service result in significant injury. Governor Martinez may have regretted losing the secret formula Mr. Darden created just for her, but she likely got over it and moved on to a new hair stylist. As for Ms Willock and her bride, they had no difficulty in finding another photographer. In neither instance did the denial of service come close to those of the separate-but-equal outrages of the Jim Crow era, in which basic public accommodations were effectively denied on the basis of race.

I can't help recalling the epigraph used by E.M. Forster (a homosexual, if that's relevant) for Howards End: "Only connect..."

If a professional wedding photographer who advertizes his services to the public, is licensed by the state and must abide by various state and federal laws, where do we draw the line between his or her freedom of religous conscience and civil laws? If we allow the wedding photographer to refuse to offer services to gay couples on freedom of religion and conscience grounds, then a restaurant owner should be able to refuse to serve food to gay people because they are in an immoral civil marriage/union that goes against his/her religious faith and religious conscience?

The question of injury, harm is an interesting point. Are we justifying the behavior because the gay couple can find another photographer or restaurant. Is that the litmus test? Does it make sense to anyone that half the businesses in any town can refuse goods and services to certain people who are living a lifestyle or practicing acts in the privacy of their households that are in violation with "their religious beliefs and religion conscience", while the other half of businesses decide they will? What kind of society would we have?

This is not a matter of "forcing" people to do things that violate their religious beliefs. This is a matter of violating someone's else's freedom and rights. Clearly, a black restaurant owner may not want to cater to a local conference of the KKK, but where do we draw the boundaries?

My earlier comment (March 4, 6:22 p.m.) should help to put my more recent one in context. You'll see that in my view the tension between the claims of civil authority and those of individual conscience is inevitable; that any permanent, definitive resolution would entail either tyranny or anarchy; and that general rules meant to fit all situations are doomed to failure. We can only muddle through each kind of situation (each kind, not each individual situation, notice!) as best we can. I referred in passing to two difficult examples, refusal of medical care by parents (for a child, obviously --we still have no editing function on this blog) and selective conscientious objection.

Enough, I won't repeat that entire posting. My lack of support for both the legislative overkill of the Arizona bill and others like it, on the one hand, and simplistic reactions against them on the other should have been clear. And if I regard general rules as doomed to failure, I could hardly be proposing any sort of "litmus test."

The problem will always be to balance the competing claims I mentioned at the outset. In that balancing act we should protect the individual's freedom of choice up to the point where that would result in unequivocal social injustice (see my references to Jim Crow laws, in both postings). Neither the wedding photographer nor the hairdresser denied essential or scarce services. Had they done so, they might indeed have posed a threat to the common good dire enough to justify requiring them to act against their (diametrically opposed) personal convictions. And let's not pretend that such a requirement does not amount to coercion. We just need to be sure coercion is justified before we employ it. And yes, boundary drawing will inevitably be difficult (see "tension," above).

I would like to remind the proponents of what the Arizona law would have allowed that the (un)intended consequences could have been for anyone to refuse to do any business with any Catholics, individually or corporately, based on "religious convictions." Ditto for Jews, Muslims and atheists.

No constitutional rights are absolute.

No one argues that you have a right to vote, yet this right is limited to citizens, at least 18 years old and, in many states, not convicted of felony.

The right to a jury trial is restricted, too. In most states, you are not allowed a jury trial in family law cases, such as divorce and child custody, or when the maximum imprisonment is six months or less.

Just as freedom of speech doesn’t allow us to yell “fire” in a crowded theater, or freedom of religion does not permit animal sacrifice, the Bill of Rights is regulated.

If you don't think that is true, ask Mormons, Christian Scientists and Jehovah's Witnesses about how their religious freedom has been regulated.

Your previous post was not completely clear as to what your specific solution would be. A so-called balancing of civil laws and freedom of religion/conscience is complex because there are dozens of circumtances that would make no sense because they would permit or not some other behavior that most people would find impractical, unreasonable or unconstitutional.

Unless such issues are resolved by the U.S. Supreme Court, we may have to acccept different laws in almost every state. Different laws in states do exist, such as the right, or not, of same-sex couples to civilly marry or enter into civil unions. This is why I would like to see such issues resolved, once and for all, at the Federal level. This may take a long time, or it may never happen. Therefore, unless a particular state can offer a standard for balancing freedom of religion/conscience and civil law that most people in other states can accept, our arguments will be likely frustrating and largely irrelevant.

We can certainly agree about the complexity. So I wonder about the qualification "so-called" when applied to balancing in this context. I hope you agree that there are legitimate claims in conflict.

If you expected me to be "completely clear" about a "specific solution," perhaps you did not fully appreciate my misgivings about resolving a tension that I think should endure, because resolving it "once and for all" seems to me impossible without privileging one kind of claim at the expense of the other. I did my best to explain my litigation-averse bias in stating why I would favor both the photographers and the hairdresser as defendants, despite their very different points of view. (I hope I don't need to add that I think litigation does have its place!)

But the ruling of the New Mexico Supreme Court in Willock v Elane Photography has been appealed to the U.S. Supreme Court, so that case may yet get a resolution at the federal level.

Meantime, here's an attempt by Conor Friedersdorf to pour oil on troubled waters:

What do you find hard to understand about the possibility of "We do not discriminate" advertising? A handful of florists and bakers who want to refuse service to gay customers don't speak for most businesses in Arizona. The majority would indicate--by signs, word of mouth, whatever--that they welcome ALL customers.

This issue is reminiscent of the debate over pharmacists who refuse to fill prescriptions for contraceptives. Filling prescriptions is a pharmacist's job: a pharmacist who doesn't like his or her job should leave the profession. If your job is selling flowers, either sell to all customers or find another job.

Yes, I think I see your point. And the comparison with pharmacists who pick and choose is genial. Actually, the approach can be generalized much further. For instance, some opponents of requiring background checks before guns are sold have suggested voluntary background checks, with sellers given access to the NICS data base, so that they could refuse to sell if they found a good reason to do so. But some gun shop owners might regard even such a procedure as too restrictive. After all, the Second Amendment guarantees the right to keep and bear arms, without silly exceptions (e.g., for convicted felons or psychotics with delusions of persecution). So if voluntary background checks became common, some dealers might want to let the public know "--by signs, word of mouth, whatever --that they welcome ALL customers." Selling guns and ammo is a gun shop owner's job: "sell to all customers or find another job."

I think we can agree there are legitimate legal and moral arguments on both sides. Hopefully, the U.S. Supreme Court will provide us with some wisdom and resolution, at least with respect to civil law. If not, different laws in different states will continue to be problematic.

I think it is time to stand back and examine this issue from a little deeper and broader perspective.

The first Europeans to settle on this continent were serious believers who came to the New World for the freedom to exercise their religion, 24/7. As was the custom of the time. The notion of "Freedom of Religion" as "Freedom of Worship", i.e., 1/1, is a relatively modern phenomenon. We all know this, or did know it by seventh - eighth grade.

Decades later a brilliant Thomas Jefferson wrote out the Declaration of Independence, describing our Rights as God-given, (not via legislation), and "inalienable." (Cannot be lost, stolen, or mutilated.) These specific, ringing ideas were signed onto by literally everyone at the time -- those who disagreed simply left the country.

Shortly thereafter another political genius, James Madison, codified these ideas into the First Amendment, ensuring that our rights would be forever save from an over-reaching government. We all knew these things by, say, tenth or eleventh grade.

In the following century the country fought a brutal Civil War to end slavery, via the 13th Amendment. ( "slavery: all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily." ILO, Geneva Convention, 1930.) We all knew this by twelfth grade.

Now comes the Far Left, commandeering any and all nearby professionals and tradespeople, citizens of the Republic, and compelling them to perform services directly contrary to their bona fide religious beliefs, and in the name of "Rights"..... Or else! The irony is exquisite:

A Constitutional Black Mass, is it not.?

How did we get so far from where we should be?

I AM CALLING YOU OUT, MR. E.J. DIONNE. You and your fellow travelers. I have posed, in the above comments, a series of hard, clear questions. Hard and clear, but basic. And answerable. Answerable because we are of the same culture--you, the readers, and me. (Culture: A system of shared values.)

Time to fish or cut bait, Mr. Dionne.

BTW, the always formidable and well-spoken Mr. Irias is NOT within the subset (fellow travelers).

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About the Author

E. J. Dionne Jr. is a syndicated columnist, professor of government at Georgetown University, and a senior fellow at the Brookings Institution. His most recent book is Our Divided Political Heart: The Battle for the American Idea in an Age of Discontent (Bloomsbury Press).